Seas Shipping Co., Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1938

4 N.L.R.B. 757 (N.L.R.B. 1938)

In the Matter of SEAS SHIPPING COMPANY, INC. and NATIONAL MA-
RINE ENGINEERS' BENEFICIAL ASSOCIATION
Case No. C-023-Decided January 4, 1938
Shipping Industry-Interference, Restraint, or Coercion: refusal to issue
passes permitting union representatives to board the respondent's vessels for
purposes of contacting members-Collective Bargaining: charges of refusal to
bargain collectively dismissed; break-down of negotiations due to termination of
conferences by union representatives.
Mr. John T. McCann, for the Board.
Mr. Frank V. Barns, of New York City, for the respondent.
Mr. Edward P. Trainer, of New York City, for the M. E. B. A.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 24, 1937, National Marine Engineers' Beneficial Associa-
tion, Local No. 33, herein called the M. E. B. A., filed with the
Regional Director for the Second Region (New York City) a charge
that Seas Shipping Company, Inc., New York City, herein called
the respondent, had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On July
23, 1937, the National Labor Relations Board, herein called the
Board, issued and duly served upon the respondent and the Union a
complaint and notice of hearing signed by the Regional Director,
alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (5) and Section 2. (6) and (7) of the Act.
In respect to the unfair labor practices, the complaint alleged in
substance that the respondent had at all times -refused to permit
representatives of the M. E. B. A. to board vessels of the respondent
on which were members of the M. E. B. A. but did permit repre-
sentatives of unions who do not,represent maritime engineers to visit
the respondent's vessels, for the purpose of discouraging such mc'm-
bership in the M. E. B. A. The complaint fui ther alleged that the
757
758 NATIONAL LABOR RELATIONS BOARD
respondent had at all times refused to bargain collectively with the
M. E. B. A. as the representative of their licensed and assistant en-
gineers, in spite of the certification by the Board on December 4,
1936, of the M. E. B. A. as the exclusive bargaining agency of the
above-mentioned employees.
On August 1, 1937, the respondent filed an answer to the complaint,
admitting its refusal to issue passes to representatives of the M. E.
B. A. for the purpose of boarding its vessels, but denying every
other material allegation in the complaint.
Pursuant to the notice, a hearing was held in New York City on
August 5, 1937, before Herman H. Gray, the Trial Examiner duly
designated by the Board. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues 'was afforded all parties. At the commencement of the
hearing the respondent moved to dismiss the complaint on the
grounds of the insufficiency of the charge, and the fact that the
complaint did not contain a prayer for relief, nor a statement of the
nature of the decision or order sought; in the alternative, the re-
spondent moved to adjourn until such time as it was furnished a
bill of particulars. The Trial Examiner denied these motions. At
the conclusion of the hearing, the respondent moved for dismissal
on the ground that the evidence adduced failed to sustain the allega-
tions of the complaint. The Trial Examiner reserved his decision
on this motion.
Subsequently the Trial Examiner filed his Intermediate Report and
sustained the respondent's motion as to the refusal to bargain, but
overruled the respondent's motion in all other respects. The Trial
Examiner found that the respondent had committed unfair labor
practices affecting commerce within the meaning of Section 8 (1)
of the Act as alleged in the complaint, and further found that the
respondent had not committed unfair labor practices within the mean-
ing of Section 8 (5) of the Act. Exceptions to the Intermediate
Report were filed by the respondent contesting the Trial Examiner's
finding in respect to Section 8 (1). No exception to the Interme-
diate Report was filed by the M. E. B. A.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has also considered the exceptions to the -find-
ings of the Intermediate Report and finds they are without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation organized under the laws of the
State of New York and has its principal office in New York City.
DECISIONS AND ORDERS 759
The respondent is engaged in the business of transporting freight
and passengers by boat between States of the United States, and be-
tween the United States and ports in East and South Africa. The
Company operates four vessels, the Robin Hood, Robin Adair, Robin
Good Fellow, Robin Gray.
On December 4, 1936, the Board rendered a decision in which it
concluded that the respondent was engaged in commerce within the
meaning of the Act.' The respondent has not since changed the
operation or scope of its business.
II. THE UNION.
National Marine Engineers' Beneficial Association, Local No. 33,
affiliated with the Committee for Industrial Organization, is a labor
organization whose membership is limited to licensed marine engi-
neers.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to issue passes
It was testified that the licensed chief and assistant engineers on
the.respondent's vessels are on duty for months at a time. During
the period they are on duty they are necessarily out of touch with
union representatives and union activities, are unaware of the activ-
ities of their fellow members, and therefore unable to give effective
.expression to their grievances or to their views on matters of union
policy. Investigation reveals that overtime work is generally neces-
sary while the vessels are in port,2 making shore leave limited and
uncertain. Seamen are ordinarily in port for a limited time and are
anxious to seek relief from the monotony of living at sea. This
minimizes the likelihood of Union contact and limits the Union's
responsiveness to its membership. Unless representatives of the
Union can be assured of a reasonable opportunity to meet with the
men, the stability and permanency of maritime labor organizations
will be affected and their effectiveness as collective bargaining agen-
cies will be impaired. The only place where the Union can be
reasonably certain of contacting its members is on board the vessels.
Experience in collective bargaining under the prevailing condi-
tions of the maritime industry has resulted in the practice of issuing
passes to Union representatives evidencing permission to board the
,vessels. It was testified that at the present time 95 per cent of the
maritime industry conformed to the practice of issuing passes. The
M. E. B. A. -has obtained such passes from shipping companies
since 1881.
1 Matter of Seas Shipping Company and National Marine Engineers' Beneftetal A880-
ciation, Local No. 33, 2 N. L. R. B. 398.
2 Federal Coordinator of Transportation, Hours, Wages and Working Conditions in
Domestic Water Transpoitation, 1936.
67573-38--vol Iv-49
760 NATIONAL LABOR RELATIONS BOARD
The respondent itself, in the past, has conformed to such practice
while under contract with the International Seamen's Union, and
more recently it has issued passes to representatives of the Inter-
national Seamen's Union and the National Maritime Union prepara-
tory to an election authorized by the Board. Thus the respondent
indicated that it was not averse to the issuance of passes. The re-
spondent gives no convincing reason for its refusal to issue passes to
representatives of the M. E. B. A. We are convinced that the reason
for the respondent's refusal is based on its desire to impede the
processes of collective bargaining.
B. The alleged failure to bargain collectively
In its previous Decision of December 4, 1936, the Board found that
the licensed chief and assistant engineers employed by the respondent
constituted a unit appropriate for the purpose of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and other
conditions of employment, and certified that the M. E. B. A., by
virtue of its representation of a majority in such unit, constituted
the exclusive bargaining agency of all the employees in the unit.
On February 5, 1937, Edward P. Trainer, business manager of the
M. E. B. A., submitted to the respondent a proposed contract on
behalf of the respondent's employees. The negotiations that fol-
lowed ultimately led to the charge by the M. E. B. A. that the re-
spondent had engaged in unfair labor practices under Section 8 (5)
of the Act by failing to bargain in good faith.
Bargaining meetings occurred oil about six occasions over a period
of approximately three months. At the first two meetings respond-
ent was represented by Carrol C. Pendleton, its executive vice-presi-
dent. Edward P. Trainer represented the M. E. B. A. At the other
meetings Frank V. Barns, an officer and counsel for the respondent,
was also present.
The contract submitted by Mr. Trainer was the standard form of
contract adopted generally by the M. E. B. A. The respondent
refused to agree upon clauses providing for a preferential shop and
the giving of passes, and wanted to reduce the number of holidays
from six to four. In addition the respondent took the position that
the duration of the contract should be six months rather than a year.
The respondent also requested modification of the clause dealing with
breaking watch and asked that the "without option on overtime"
clause be altered to read "with option".3
3 The respondent wished to have the option of converting overtime to shore leave or
of making overtime payments. The M. E. B. A., however , insisted that the respondent
be required to make payments for overtime work and refused ' to give the respondent any
option in the matter.
DECISIONS AND ORDERS 761 '
On May 5, 1937, the respondent offered a counter proposal in
writing which purported to embody the terms of the contract ac-S
ceptable to it. This proposal agreed to the M. E. B. A.'s position
on the overtime clause. When the parties were ready to sign this,
counter proposition the respondent decided it wished to change the
"without option" on overtime and reverted to its previous position
in the matter. At this point Trainer walked out of the conference.
Though the respondent stated, in the course of the negotiations,
that the law did not require a signed contract, it did submit a counter
proposal in writing. The break-down of the negotiations may be
traced to differences over real and substantial issues, and the termina-
tion of the final conference was not due to the respondent, but to the
hasty departure of the representative of the M. E. B. A.
We are unable to find that the respondent failed to bargain with.
the M. E. B. A. within the meaning of Section 8 (5) of the Act..
The allegations of the complaint to this effect will, therefore, be,
dismissed. -•
On the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. National Marine Engineers' Beneficial Association, Local No_
33, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. The respondent did not refuse to bargain collectively witlu
National Marine Engineers' Beneficial Association, Local No. 33,.
as the exclusive representative of the licensed chief engineer and
assistant engineers in the respondent's employ and did not engage in
unfair labor practices within the meaning of Section 8 (5) of the Act_
3. The respondent has interfered with, restrained, and coerced,,
and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, and.
has engaged and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
4. The unfair labor practices referred to in paragraph 3 above
are unfair labor practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions, of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders: that the
762 NATIONAL LABOR RELATIONS BOARD
respondent , Seas Shipping Company, Inc., and its officers , agents,
successors and assigns , shall:
1. Cease and desist from refusing to issue passes to representatives
oof National Marine Engineers ' Beneficial Association , Local No. 33.
2. Cease and desist from in any other manner interfering with,
restraining or coercing its employees in the exercise of the right to
self-organization , to form, join, and assist labor organizations, to
bargain collectively. through representatives of their own choosing,
and to engage in concerted activities , for the purpose of collective
bargaining, and other mutual aid and protection , as guaranteed in
Section 7 of the National Labor Relations Act.
3. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
a. Grant to the duly authorized representatives of the National
Marine Engineers ' Beneficial Association , Local No. 33, passes which
will permit such representatives to go aboard its vessels while in
port at all reasonable hours in order to meet with the licensed
engineers;
b. Post immediately notices to its employees in conspicuous places
on its vessels stating that the respondent will cease and desist in the
manner aforesaid , and keep such notices posted for a period of at
least thirty ( 30) consecutive days from the date of posting;
c. Notify the Regional Director for the Second Region in writing
within ten ( 10) days from the date of this order what steps the
respondent has taken to comply herewith.
And it is further ordered that the allegations of the complaint with
respect to the respondent 's refusal to bargain collectively with Na-
tional Marine Engineers ' Beneficial Association, Local No. 33, be and
they hereby are dismissed.
A